Evolving Processes: Technology and Common Law

As economist Brian Arthur struggled to define “technology” in his book, The Nature of Technology, I started thinking about how it is almost equally challenging to concretely explain the concept of “Common Law.” To me, the struggle to define both is rooted in their organic natures. To describe the evolutionary procedures of technology, Arthur writes, “The process is organic: the new layers form on top of the old, and creations and replacements overlap in time.” Arthur continues describing technology’s progression as a “metabolic chemistry, an almost limitless collective of entities that interact and build from what is in there to produce new entities – and further needs” (Arthur, p. 213). This blog compares the evolution of technology to the evolution of the U.S. Court System. Additionally, I will argue the need to re-examine yesterday’s legal standards in order to better address issues created by today’s technologies.

Technology evolves through new inventions that are created by combining pieces of previous technologies and utilizing shared reference points, scripts, and standards. These standards are challenging to change because new technologies build upon them, making the pre-existing standards even more powerful and rooted into the system. When determining and arguing the outcome of a new case, judges and attorneys operating in a common law system also use shared points of reference: previous case decisions, known as precedents. Once a precedent is set, it is challenging to change. The more a precedent is referenced, the more power it gains. Furthermore, just as we do not need 20 different types of outlets in our homes requiring different converters, our legal system champions attempting to limit the number of new laws by addressing present problems with existing precedents or standards.

“It is often said that hard cases make bad laws”

The Telegraph in London ran a column by Michael Hanlon titled, “Taking new technologies to court – from self-driving cars to man-made consciousness, science is about to unleash a host of legal dilemmas.” The article opens with the argument that “hard cases make bad laws” and references the Dangerous Dog Act failure as an example of support. However, Hanlon writes “Sometimes new technologies really do open up a whole new legal playing field.” Hanlon then discusses several examples, including how America had to “scrap a law [deeming] the airspace of anyone’s land [as] their property” due to the invention of airplanes. In his two opening paragraphs, Hanlon points toward two issues where standards are intimately involved: a new “playing field” and the process of redefining “property.”

A New Legal Playing Field

When Hanlon suggests the idea of a “new legal playing field,” is he suggesting a new domain? He points to compelling legal issues that the 1,2 and 3Ls at Georgetown Law may eventually have to tackle – from the already existing self-driving cars, to new areas of exploration such as man-made consciousness. However, as Arthur stresses, technologies are invented and domains emerge. Arguably, the law redesigns itself as it encounters new “things” (issues, technologies, etc.), which is similar to how people are forced into a redesign process as they encounter new technologies (Arthur, Winner). A new legal domain platform could emerge, but the innovation used to create the “new playing field” will not be immediate; it will likely be organic, born out of many interconnected pieces (Arthur, Weber).

Property: What does it mean?

In encountering airplanes as a new form of transportation technology, lawmakers had to “negotiate the boundaries between diverse phenomena,” land and air (Garcia). They opened the skies above properties (owned by both the well-off and the struggling) to create a new transportation channel for all: commercial flight. In The Success of Open Source, Steven Weber discusses that open source was “open” because it “fundamentally inverted the notion of property;” the movement was “configured around the right to distribute, not the right to exclude” (Weber). Weber writes, “Change the foundations of property, and you change the network of relationships that radiate outward from that which is owned, in fundamental and often unexpected ways.”

One thing seems clear, the process of determining new standards, especially new legal standards, will always involve negotiations. However, until we acknowledge and agree upon new standards in technology, we will just have to muddle through.

Arthur, W. B. (2009). The Nature of Technology: What it is and How it Evolves. New York: Free Press.